Angela Jackson v. Estate of Gary DayAngela Jackson v. Estate of Gary Day
OPINION
AFFIRMING
Appellants Lamont Marshall and Angela Jackson were injured in a two-vehicle accident with Gary Day in February 2014. Despite a returned summons in the court record indicating that Day had died in December 2014, the Appellants did not discover his death until after the two-year statute of limitations expired. Because they did not properly amend their complaint to substitute his estate in place of Day individually within the limitations period, the trial court granted summary judgment and dismissed the complaint based on this Court‘s holding in Gailor v. Alsabi, 990 S.W.2d 597 (Ky. 1999). The Court of Appeals unanimously affirmed and adopted the trial court‘s opinion in its entirety. Having granted discretionary review and finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
On February 15, 2014, Lamont Marshall was driving his vehicle with Angela Jackson riding as his passenger when they were struck in the rear by a vehicle operated by Gary Day. Both Marshall and Jackson sustained injuries as a result. Day‘s vehicle was insured by State Farm
The applicable statute of limitations,
An action for tort liability not abolished by
KRS 304.39-060 may be commenced not later than two (2) years after the injury, or the death, or the date of issuance of the last basic or added reparation payment made by any reparation obligor, whichever later occurs.
By operation of this statute, Marshall‘s limitations period expired on May 30, 2016, and Jackson‘s on July 1, 2016.
On December 29, 2015, well before the limitations period expired on their claims, Marshall and Jackson filed a complaint against Day, individually, alleging negligence and seeking damages for pain and suffering, physical and mental injuries, and lost wages. Unbeknownst to all parties, Day had died almost a full year earlier, on December 31, 2014. A civil summons was issued to Day‘s last known address via certified mail and was returned undelivered on February 5, 2016, with notes stating, “return to sender,” “no such number,” and “unable to forward.” The returned summons gave no indication that Day was deceased.
On March 8, 2016, Marshall and Jackson amended their complaint to add USAA as a defendant for underinsured motorist (UIM) benefits. An alias summons was issued on that date to Day‘s last known address via certified mail and was again returned undelivered on April 12, 2016, with notes stating, “return to sender,” “unclaimed,” and “unable to forward.” On April 28, 2016, Marshall and Jackson had another alias summons issued to Day for service via sheriff. The summons was returned to the clerk‘s office on May 18, 2016, with a notation that Day was “deceased,” although the notation entered on CourtNet only stated, “alias not found.” Having been unable to effect service upon Day, Marshall and Jackson sought appointment of a special bailiff in August 2016. The special bailiff attempted service but reported to Marshall and Jackson‘s attorney that Day‘s ex-wife informed him that Day had died on December 31, 2014. State Farm maintains, and Marshall and Jackson do not dispute, that neither State Farm nor its counsel knew of Day‘s death until informed of the special bailiff‘s report by Marshall and Jackson‘s counsel in August 2016.
On August 19, 2016, after expiration of the statute of limitations for both Marshall and Jackson, they petitioned the probate court to appoint a public administrator for Day‘s estate (the Estate) and on September 7, 2016, Chris Meinhart, public administrator, was appointed. Upon motion and with approval of the court, a second amended complaint was filed on November 1, 2016, which substituted Patricia Smith as administrator of Day‘s Estate in place of Day individually. Patricia Smith is an attorney in Meinhart‘s office who routinely represents the public administrator in these matters. On November 28, 2016, Smith filed a response stating that she was incorrectly named as the administrator because she is in fact the attorney for the public administrator. Upon motion and approval of the trial court, Marshall and Jackson filed a third amended complaint on December 19, 2016, correctly naming the Estate as a party with Chris Meinhart as the administrator.
On January 12, 2017, USAA filed a motion for summary judgment arguing that
The trial court concluded that the claims against the Estate were time barred, relying on Gailor, 990 S.W.2d 597, and accordingly granted summary judgment in favor of the Estate and USAA. The trial court reasoned that the Estate could not have acquired knowledge that suit would have been brought against it because it did not even exist as a legal entity within the limitations period, and that nothing supported the proposition of imputing an attorney‘s knowledge to a non-existent client. Additionally, the trial court held that the failure to bring suit against the Estate before the limitations period expired precluded recovery of UIM benefits from USAA. As noted, Marshall and Jackson appealed to the Court of Appeals, which adopted the trial court‘s opinion and order in its entirety.
ANALYSIS
I. Gailor v. Alsabi is applicable and controlling.
Twenty years ago, in Gailor, 990 S.W.2d 597, this Court addressed a case factually similar to the one before us, dismissing an amended complaint against a deceased driver‘s estate as untimely. Marshall and Jackson argue that Gailor‘s holding should be modified to protect valid claims from unjust dismissal. We decline to modify this consistently applied, bright-line rule.
In Gailor, Alsabi and Whalen were involved in a motor vehicle accident in which Alsabi was injured and subsequently incurred medical expenses. Id. at 599. Alsabi filed suit against Whalen on February 3, 1994, one day prior to the expiration of the statute of limitations. Id. at 600. A summons was returned noting that Whalen was deceased, and it was later discovered that Whalen had died almost two years earlier, on February 5, 1992. Id. Alsabi‘s attorney stated that he did not learn of Whalen‘s death until after the statute of limitations expired. Id. A public administrator was appointed for Whalen‘s estate on November 17, 1994, and Alsabi amended the complaint on January 19, 1995, substituting the estate in place of Whalen and properly serving the public administrator. Id. Thereafter, the trial court granted summary judgment in favor of the estate‘s administrator, having concluded that Alsabi‘s action was barred by the statute of limitations. Id.
On appeal to this Court, Alsabi‘s primary argument was that, pursuant to
(1) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
The only defendant named in Alsabi‘s original complaint was the deceased Whalen. Gailor, 990 S.W.2d at 600. This Court held that because the complaint did not name a defendant over whom the court could acquire jurisdiction, the complaint was a nullity. Id. Also, Alsabi did not sue the estate during the statute of limitations period and so the proper defendant could not have had notice within that limitations period as referenced in
As in Gailor, Marshall and Jackson did not sue a proper defendant within the statute of limitations period. Unfortunately, this scenario is not uncommon.1 Prior to Gailor, the Court of Appeals, addressing another case where the defendant had died before the complaint was filed, succinctly stated the principle applicable in these cases:
It is incumbent upon a plaintiff, when he institutes a judicial proceeding, to name the proper party defendant. It is fundamental to our jurisprudential system that a court cannot, in an in personam action acquire jurisdiction until a party defendant is brought before it. The party defendant must actually or legally exist and be legally capable of being sued.
Ratliff v. Oney, 735 S.W.2d 338, 341 (Ky. App. 1987). Here, Day passed away almost a full year before Marshall and Jackson filed their initial complaint, and it was not until after the statute of limitations expired that they petitioned for the appointment of a public administrator. The period of limitations for Marshall and Jackson expired on May 30, 2016 and July 1, 2016, respectively, and an administrator was not appointed until September 7, 2016. Thus, the Estate could not have known about the proceedings against it during the
applicable limitations period as required by
Marshall and Jackson‘s case is essentially a more recent version of Gailor.
II. Knowledge of a claim cannot be imputed to a non-existent party to satisfy the notice requirement of CR 15.03.
Marshall and Jackson also argue that because Day‘s insurer, State Farm, knew about their claims, that State Farm‘s knowledge of these claims should be imputed to the Estate. Relying on Harris v. Jackson, 192 S.W.3d 297 (Ky. 2006), Marshall and Jackson maintain that State Farm is the real
party in interest because it bore all the liability exposure up to its policy limits, and conversely that the Estate had no substantive interest in the case.
In Harris, the trial court dismissed an action arising from a motor vehicle accident for failure to revive the action against a personal representative after Harris, the tortfeasor, died. Id. at 301. Notably, unlike the case before us, Harris, the defendant was alive when the complaint was filed. Significant activity continued to occur in the case after Harris‘s death some fourteen months later. Id. at 299. At some point, the attorney assigned by the insurer to defend the claim learned of Harris‘s death and on May 9, 2002, he sought guidance from the Kentucky Bar Association as to his ethical responsibilities for disclosure. Id. The ethical advisor informed the attorney that he could not misrepresent, by statement or silence, the fact that his client was deceased. Id. at 301. Ultimately, the attorney filed a motion to dismiss on behalf of Harris based on his death and the plaintiff‘s failure to timely revive “in the name of the representative or successor” of the defendant pursuant to
On appeal, this Court raised the issue of jurisdiction, questioning how defense counsel could file motions, briefs, and a petition for discretionary review for a deceased client, but noted that the parties did not address the issue. The Court stated:
we have not always acted “sua sponte” as to jurisdictional questions regarding defects in parties where, (1) we were otherwise assured that a “real party in interest” was providing appropriate “virtual representation,” (2) the matter presented was of importance to reach at the time presented, and (3) the parties did not address the defect.
Harris, 192 S.W.3d at 301-02. Thus, the Court made it clear that the issue of whether an attorney has the duty to disclose the death of a client was the primary issue to be addressed, and its discussion of virtual representation and real parties in interest was secondary to its main holding. The Court acknowledged previous cases
Harris is distinguishable from Marshall and Jackson‘s case because the tortfeasor, Harris, died after the complaint had been filed against him; proper service was effectuated on Harris before his death. Id. at 299. A significant amount of discovery and pre-trial activities occurred despite Harris‘s death. Id. at 299-302. The plaintiffs in the case were required to revive the action pursuant to
and much of this Court‘s discussion focused on counsel‘s duty to disclose the death of a client. Id. at 298-99. In contrast, proper service was never effectuated on Day in this case, so the issue of reviving Marshall and Jackson‘s claims was not present. Additionally, Day passed away over a year prior to being “represented” by the counsel retained by State Farm, rendering the primary holding of Harris inapplicable.
Marshall and Jackson‘s case is more similar to two Court of Appeals cases, Mitchell v. Money, 602 S.W.2d 688 (Ky. App. 1980), and Hendrix v. Holbrook, 2010 WL 135122 (Ky. App. Jan. 15, 2010). In Mitchell, the plaintiff filed suit against a tortfeasor after he had already died, so service of process on the tortfeasor was impossible. 602 S.W.2d at 688. The Court of Appeals stated “[a]s the court never obtained personal jurisdiction over the decedent, he was . . . never a party to the action. In effect, the original action filed by the appellant was a nullity . . . .” Id. at 689. While the amended complaint in Marshall and Jackson‘s case is not a complete nullity,4 given that USAA was a properly named defendant over which the trial court acquired jurisdiction, the complaint was a nullity as to Day and his Estate because the court did not acquire jurisdiction over either party during the applicable statute of limitations period.5
In Hendrix, Hendrix sought to revive an action against a deceased tortfeasor once the statute of limitations had expired. 2010 WL 135122 at *1. Because the motion to amend the complaint was made over two years after the tortfeasor‘s death, the trial court dismissed the action for failure to revive the action timely pursuant to
App. 1986), the new party must have knowledge of the proceedings, gained during the statutory period. Gailor, 990 S.W.2d at 601.
To reiterate,
Marshall and Jackson also attempt to satisfy the notice requirement by claiming the eventual attorney for the Estate, Richards, had knowledge of the action within the applicable limitations period. Richards was initially retained by State Farm to represent Day. In support of this assertion, Marshall and Jackson include emails between a paralegal in their attorney‘s office and Richards dated in April 2016. These brief emails merely acknowledge a claim against Day. In April 2016, the Estate did not exist and given that no one associated with the case knew of Day‘s death, Richards was seemingly representing Day, not the Estate. Obviously, no attorney-client relationship existed between Richards and the Estate during the limitations period. There is also no evidence that Richards or anyone in his firm knew of Day‘s death prior to the expiration of the limitations period. Similarly, it is immaterial that State Farm, Day‘s insurer, had knowledge of the claim during the statute of limitations period.6 Like the tortfeasor‘s insurer in Gailor, State Farm was not named as a defendant in any of the complaints, and thus
Marshall and Jackson also cite Harris to argue that State Farm is a real party in interest and serves as a virtual representative for the Estate. 192 S.W.3d 297. The doctrine of virtual representation “recognizes that a party joined in a law suit may effectively represent another not so joined, where they have a common interest and the former may be depended upon to present the merits of the controversy
or remote interest in the subject matter.” Id. at 303. We note that in Marshall and Jackson‘s case, it was not impracticable to properly substitute the Estate for Day given the sheriff‘s return of service noting that Day was deceased before the statute of limitations had run on either Marshall or Jackson‘s claim.
In any event, regardless of its persuasiveness, the virtual representation argument is not properly before this Court because it was not argued at the trial court. “It has long been this Court‘s view that specific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal.” Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011), abrogated on other grounds by Nami Res. Co. v. Asher Land & Mineral, Ltd., 554 S.W.3d 323 (Ky. 2018). “An appellate court is without authority to review issues not raised in or decided by the trial court.” Meyers v. Commonwealth, 381 S.W.3d 280, 286 (Ky. 2012). In their brief in opposition to summary judgment, Marshall and Jackson argued (1) that their case is distinguishable from Gailor, (2) that the third amended complaint related back to the date of filing of the amended complaint; and (3) that dismissal of their claims results in unnecessary injustice. They did not raise the virtual representation argument, and because it is not properly before this Court, we do not consider it.
III. The application of Gailor is not unjust.
Marshall and Jackson repeatedly assert that the application of Gailor is unjust and results in claims being unfairly dismissed. They further contend that without modification of the law, Gailor bars a plaintiff‘s claim based simply upon the timing of a tortfeasor‘s death. We disagree. If Appellants had exercised due diligence, this seemingly “unfair” result could have been avoided. Day died on December 31, 2014, almost a full year before the original complaint was filed and approximately a year and a half before the statute of limitations period expired. Although an estate was not opened during the limitations period, other means exist for ascertaining a person‘s vital status, such as obituaries or background searches. Most importantly, if Marshall and Jackson had reviewed the physical court file in their own case, they would have learned of Day‘s death as reflected in a May 17, 2016 notation. Instead, they relied solely on CourtNet, which contained no such notation.
CourtNet warns its users that it is not intended to be an official court record. Further, the CourtNet user agreement contains a disclaimer that states that “the information obtained from CourtNet may not reflect the true status of court cases. The [Administrative Office of the Courts] makes no warranties as to the accuracy or completeness of the information contained in CourtNet data.”7 The user
reasonably discoverable information that Gary Day was deceased,” simply is not true.
Further, Gailor does not hold that any suit originally filed against a deceased defendant cannot ever be amended past the limitations period. Instead, it simply holds that
IV. The facts of this case do not warrant tolling of the statute of limitations.
Next, Marshall and Jackson argue that the statute of limitations should be equitably tolled. They cite Nanny v. Smith, 260 S.W.3d 815, 818 (Ky. 2008), to support the proposition that the statute of limitations should be tolled in circumstances beyond a party‘s control when “the party has exercised due diligence and is clearly prejudiced.” (citing Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005)). While there are circumstances justifying equitable tolling when a party is prejudiced, this case does not warrant tolling.
Marshall and Jackson state that they did not have any reasonably discoverable information that Day was deceased prior to the expiration of the limitations period. As stated above, the record reflects otherwise. While they correctly point out that no estate was established during the statute of limitations, which would have provided a public record of Day‘s passing, the sheriff‘s note on the return of service provided accurate information and was accessible to Marshall and Jackson within the limitations period.
The main purpose of statutes of limitation is to “encourage the plaintiff to pursue his rights diligently, and when an extraordinary circumstance prevents him from bringing a timely action, the restriction imposed by the statute of limitations does not further the statute‘s purpose.” CTS Corp. v. Waldburger, 573 U.S. 1, 10 (2014). We cannot say that Marshall and Jackson pursued their claim diligently, as there was readily available information in the court file that would have allowed them to properly substitute parties and effectuate service within the statute of limitations period. No extraordinary circumstances prevented them from filing a timely action.
V. The underinsured motorist (UIM) issue is not properly before the Court.
In its order granting summary judgment, the trial court also held that because a tortfeasor‘s liability is an element of an underinsured motorist (UIM) claim, Coots v. Allstate Ins. Co., 853 S.W.2d 895, 898 (Ky. 1993), and because Day is not liable based on the statute of limitations, Marshall and Jackson were precluded from
However, for clarity, we will reiterate that a UIM carrier is “liable only for damages for which the insured would have been compensated but for the fact that the tortfeasor was underinsured. . . . [I]f the underinsured tortfeasor could not be held liable for an item of damages, that item is not ‘uncompensated damages’ payable by the UIM carrier.” Cincinnati Ins. Co. v. Samples, 192 S.W.3d 311, 316 (Ky. 2006). Therefore, proof that the tortfeasor is an underinsured motorist9 is an essential fact that must be proved before the insured can recover judgment in a lawsuit against the UIM insurer. Coots, 853 S.W.2d at 899.
CONCLUSION
Based on the foregoing, we conclude that the trial court and the Court of Appeals correctly held that Marshall and Jackson‘s claims were filed outside the statute of limitations period and that the requirements of
not met. Gailor is directly on point and controlling, and we find no reason to overrule its holding. The Court of Appeals’ decision is affirmed.
All sitting. Minton, C.J.; Keller, Nickell, VanMeter, and Wright, JJ., concur. Lambert, J., dissents without separate opinion.
COUNSEL FOR APPELLANTS:
Michael Anthony Schafer
Christopher Allan Rogers
THE SCHAFER LAW OFFICE
COUNSEL FOR APPELLEE, ESTATE OF GARY DAY:
Chris Meinhart
MEINHART SMITH & MANNING, PLLC
Deborah C. Myers
Jace Shackelford Martin
DILBECK & MYERS, PLLC
COUNSEL FOR APPELLEE, USAA GENERAL INDEMNITY COMPANY:
Eric Allen Hamilton
Andrew Tyler Garverich
COLEMAN LOCHMILLER & BOND
COUNSEL FOR AMICUS CURIAE, KENTUCKY JUSTICE ASSOCIATION:
Kevin Crosby Burke
Jamie Kristin Neal
BURKE NEAL, PLLC
Matthew Marston McGill
LOWDER & MCGILL, PLLC